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CONNECTICUT ENERGY MARKETERS ASSN. v. DEPT. OF ENERGY &
ENVIRONMENTAL PROTECTION—DISSENT
EVELEIGH, J., dissenting. I respectfully dissent from
the majority opinion, which affirms the judgment of the
trial court dismissing the claims brought by the plaintiff,
Connecticut Energy Marketers Association, against the
defendants, the Department of Energy and Environmen-
tal Protection (department) and the Public Utilities Reg-
ulatory Authority (authority). First, respectfully, in my
view, this is not an issue of sovereign immunity and
the case should not have been dismissed on that basis.
If, in fact, the case did not state a cause of action, as
held by the trial court, the matter should have been
subject to a motion to strike for failure to state a cause
of action. I would return the matter to the trial court
for further consideration on a motion to strike. Second,
in my view, this case does state a cause of action. The
trial court held that an environmental impact evaluation
was only required ‘‘for activities funded by or proposed
to be undertaken by the state. The [2013 Comprehensive
Energy Strategy for Connecticut (comprehensive
energy strategy) issued by the department] was nei-
ther.’’ The court further held that ‘‘[b]ecause approval
of the [comprehensive energy strategy] is not an action
which may significantly affect the environment, as that
phrase is defined in [General Statutes] §§ 22a-1b (c)
and 22a-1c, the plaintiff has failed to state a claim under
the [Environmental Policy Act (policy act), General
Statutes § 22a-1 et seq.].’’ Section 22a-1a-1 (2) of the
Regulations of Connecticut State Agencies, however,
defines ‘‘action’’ as, inter alia, ‘‘other proposed activity
for which an agency exercises judgment or discretion
as to the propriety of that action.’’ This language is
derived from § 22a-1b (c), which requires an agency to
make a detailed written evaluation of any environmen-
tal impact ‘‘before deciding whether to undertake or
approve such action.’’1 Thus, the agency’s approval of
an activity or sequence of proposed activities consti-
tutes an ‘‘action’’ under the regulations if the activity
may significantly affect the environment. Therefore, in
my opinion, the present case does state a cause of
action and should not have been dismissed. Rather, I
would remand the matter to the trial court for a determi-
nation of whether the activity may significantly affect
the environment. Therefore, I respectfully dissent.
I
I will not repeat the facts and procedural history since
they are accurately reflected in the majority opinion. I
will only reference the facts as they may relate to this
dissenting opinion.
The trial court held that since the complaint did not
state a cause of action under the policy act, ‘‘[t]herefore,
the state’s sovereign immunity remains undisturbed,
and the court lacks subject matter jurisdiction. Conse-
quently, the plaintiff’s complaint is dismissed.’’ (Foot-
note omitted.) A determination of the trial court’s
subject matter jurisdiction presents a question of law.
Rocky Hill v. SecureCare Realty, LLC, 315 Conn. 265,
276, 105 A.3d 857 (2015). This court reviews de novo
a trial court’s ruling on a motion to dismiss. Id., 276–77.
‘‘[I]n determining whether a court has subject matter
jurisdiction, every presumption favoring jurisdiction
should be indulged.’’ (Internal quotation marks omit-
ted.) Byrne v. Avery Center for Obstetrics & Gynecol-
ogy, P.C., 314 Conn. 433, 447, 102 A.3d 32 (2014).
The policy act is a supplement to the Connecticut
Environmental Protection Act, General Statutes § 22a-
14 et seq. Manchester Environmental Coalition v.
Stockton, 184 Conn. 51, 66, 441 A.2d 68 (1981), overruled
in part on other grounds by Waterbury v. Washington,
260 Conn. 506, 556, 800 A.2d 110 (2002). The policy act
contains the procedural requirements for ensuring that
state actions receive a ‘‘thoughtful and meaningful con-
sideration of environmental factors.’’ Id., 68. It provides
in relevant part that agencies responsible for the pri-
mary recommendation or initiation of actions that may
significantly affect the environment make a written
evaluation of the environmental consequences of the
proposed action. See General Statutes § 22a-1b (c).
‘‘[A]n impact statement is required whenever the project
will arguably damage the environment.’’ Manchester
Environmental Coalition v. Stockton, supra, 67. ‘‘The
determination of whether an action may significantly
affect the environment is a legal issue, involving the
interpretation of [§§ 22a-1b and 22a-1c], which can be
decided by a court.’’ (Internal quotation marks omitted.)
Id., 68 n.20.
The complaint in the present case asserts jurisdiction
‘‘pursuant to [General Statutes] § 22a-16.’’ The defen-
dants have conceded that this provision confers stand-
ing on any person in a case brought under the policy
act, irrespective of whether such person is classically
aggrieved for the purpose of standing. As we stated
in Manchester Environmental Coalition v. Stockton,
supra, 184 Conn. 64 n.15, the policy act does ‘‘not require
aggrievement as a prerequisite to challenging the prepa-
ration, or lack of preparation, of an impact statement.’’
Because the policy act is ‘‘ ‘[i]n furtherance of and pur-
suant to’ ’’ §§ 22a-1 and 22a-15, and because it was
intended to be supplemental to the Connecticut Envi-
ronmental Protection Act, standing to raise the proce-
dural issues governed by the policy act is conferred by
§ 22a-16, and it is granted to the same persons on whom
standing is conferred to raise substantive issues under
the Connecticut Environmental Protection Act. (Inter-
nal quotation marks omitted.) Id., 65–66. That is, ‘‘ ‘any
person’ ’’ has standing to bring an action under the
policy act to challenge a failure to prepare an environ-
mental impact evaluation. Id., 57. By conferring stand-
ing on ‘‘any person’’ to challenge the failure of an agency
to prepare an impact statement, § 22a-16 stands as an
explicit waiver of sovereign immunity with respect to
such actions. In my view, therefore, it was incorrect
for the trial court to grant the motion to dismiss on the
basis of sovereign immunity. I would, therefore, remand
the case to the trial court in order to consider the matter
under the proper standard.
Although the defendants conceded in the trial court
that § 22a-16 waives sovereign immunity for a policy act
violation, they contended, nonetheless, that sovereign
immunity is waived only for claims properly cognizable
under the policy act, and not for claims that fail to state
a legally sufficient policy act claim. Thus, they styled
their motions as motions to dismiss, challenging the
jurisdiction of the trial court on sovereign immunity
grounds. The gravamen of the motions, however, are
assertions that the complaint fails to state a claim under
the policy act on which relief can be granted, which is
properly the subject of a motion to strike.
In reviewing the motion to strike, a court should
‘‘construe the complaint in the manner most favorable
to sustaining its legal sufficiency.’’ (Internal quotation
marks omitted.) Sullivan v. Lake Compounce Theme
Park, Inc., 277 Conn. 113, 117, 889 A.2d 810 (2006). If
the facts set forth in the complaint ‘‘would support a
cause of action, the motion to strike must be denied.’’
(Internal quotation marks omitted.) Id., 117–18. More-
over, the ‘‘pleadings must be construed broadly and
realistically, rather than narrowly and technically.’’
(Internal quotation marks omitted.) Coppola Construc-
tion Co. v. Hoffman Enterprises Ltd. Partnership, 309
Conn. 342, 350, 71 A.3d 480 (2013). Therefore, the policy
act specifically waives sovereign immunity. The ques-
tion is not one of jurisdiction, but rather whether the
complaint stated a cause of action.
II
In my view, the complaint does state a claim under
the policy act on which relief can be granted. The stan-
dard of review of a trial court’s conclusions on a matter
of law is de novo. Id. Section 22a-1b (c) provides in
relevant part that ‘‘[e]ach state department, institution
or agency responsible for the primary recommendation
or initiation of actions which may significantly affect
the environment shall in the case of each such proposed
action make a detailed written evaluation of its environ-
mental impact before deciding whether to undertake
or approve such action . . . .’’ Section 22a-1c, in turn,
defines ‘‘ ‘actions which may significantly affect the
environment’ ’’ as ‘‘individual activities or a sequence
of planned activities proposed to be undertaken by state
departments, institutions or agencies, or funded in
whole or in part by the state, which could have a major
impact on the state’s land, water, air . . . or other envi-
ronmental resources, or could serve short term to the
disadvantage of long term environmental goals. . . .’’
The majority holds that ‘‘for purposes of § 22a-1b (c),
activities must both (1) be ‘proposed to be undertaken
by state departments, institutions or agencies, or funded
in whole or in part by the state,’ and (2) potentially ‘have
a major impact on the state’s’ environmental resources.
The most natural reading of the phrase ‘proposed to
be undertaken by an agency or agencies’ is that the
proposed or initiated activity that will allegedly have a
major impact on the state’s environment ultimately
must ‘be undertaken by an agency or agencies.’ . . .
Thus, activities that are proposed by state actors, but
which are ultimately performed by private entities, do
not constitute ‘actions which may significantly affect
the environment’ for purposes of § 22a-1b (c).’’ (Citation
omitted; emphasis omitted.) While I concede that the
majority’s interpretation of the statute is a reasonable
one, I find equally persuasive the interpretation of the
plaintiff that once the state engages in an action that
may potentially affect the environment, said action will
require an environmental impact evaluation. The defini-
tion of the terms ‘‘action’’ and ‘‘proposed or initiated
activity’’ are therefore crucial to the inquiry. In other
words, does the proposed or initiated activity ultimately
have to be performed by a state agency and thus, neces-
sarily meet the requirements of the statute, or is it
enough to meet those requirements that the state initi-
ates the mechanism by which the acts are ultimately
performed by a private entity? I would conclude that,
in light of the two reasonable interpretations, the statute
is ambiguous. Therefore, I would resort to extratextual
sources, including the regulations, which is appropriate
under General Statutes § 1-2z. Although not expressly
stating in the opinion that the statute is ambiguous,
the majority’s reliance upon legislative history and the
regulations would suggest that it also finds the statute
to be ambiguous.
Shortly after the policy act was enacted, the depart-
ment promulgated regulations that drew upon §§ 22a-
1b (c) and 22a-1c to define in greater depth the type of
‘‘actions which may significantly affect the environ-
ment.’’ General Statutes § 22a-1b (c). I respectfully dis-
agree with the majority’s position that ‘‘[t]hus, activities
that are proposed by state actors, but which are ulti-
mately performed by private entities, do not constitute
‘actions which may significantly affect the environment’
for purposes of § 22a-1b (c).’’ If that were the case,
there would have been no need for the phrase ‘‘activities
proposed to be undertaken by state [actors] . . . .’’
General Statutes § 22a-1c. The legislature could have
merely stated that if the state is not paying for the
project in whole or in part, any other actions of state
departments are not actions which affect the environ-
ment. Instead, the legislature used the additional phrase
of ‘‘activities proposed to be undertaken by state
[actors] . . . .’’ General Statutes § 22a-1c. If the inter-
pretation of the statute is the one proposed by the
majority, this statutory language is superfluous
because, according to both the majority and the trial
court, unless the activity is funded in whole or in part
by the state, it does not affect the environment and,
therefore, an environmental impact evaluation is not
necessary. The use of the word ‘‘or’’ in § 22a-1c belies
this interpretation. Rather, as I view the relevant lan-
guage in § 22a-1c, the definition of ‘‘ ‘actions which may
significantly affect the environment’ ’’ should be read
to include those projects either funded in whole or in
part by the state, or those in which state actors proposed
action. The department’s regulatory definition, is set
forth in § 22a-1a-1 (2) of the regulations, which provides
in relevant part that ‘‘[a]ction means an individual activ-
ity or a sequence of planned activities initiated or pro-
posed to be undertaken by an agency or agencies, or
funded in whole or in part by the state. . . .’’ Thus,
under the applicable regulatory definition, an ‘‘action’’
is an ‘‘activity’’ or ‘‘a sequence of planned activities’’
that are ‘‘initiated’’ or ‘‘funded’’ by an agency. Regs.,
Conn. State Agencies § 22a-1a-1 (2). The ‘‘proposed to
be undertaken’’ language in § 22a-1a-1 (2) of the regula-
tions is taken from § 22a-1c. The ‘‘initiated’’ language
in § 22a-1a-1 (2) of the regulations is taken from the
‘‘initiation of actions’’ language of § 22a-1b (c).
Section 22a-1a-1 (2) of the regulations also includes
within the applicable definition of ‘‘action’’ any ‘‘other
proposed activity for which an agency exercises judg-
ment or discretion as to the propriety of that action.’’
This language is derived from General Statutes § 22a-
1b (c), which requires an agency to make a detailed
written evaluation of environmental impact ‘‘before
deciding whether to undertake or approve such action.’’
Thus, an agency’s approval of an activity or sequence
of proposed activities constitutes an ‘‘action’’ under
the regulations if the activity may significantly affect
the environment.
The essence of an ‘‘action,’’ therefore, is an activity
or sequence of planned activities that may have a signifi-
cant impact on the environment. But the activity or
sequence of activities must be triggered by an act of
a state department, institution or agency. Under the
department’s regulations, activities are triggered by
state action when an agency proposes the activity or
sequence of activities, when an agency initiates the
activities by an authorizing act of approval or by other
acts of implementation, or when an agency funds the
activity, in whole or in part. See Regs., Conn. State
Agencies § 22a-1a-1 (2).
The majority claims that such a reading ‘‘would both
require the insertion of words such as ‘to be undertaken
by any person or entity’ into § 22a-1a-1 (2) of the regula-
tions and General Statutes § 22a-1c and render the
existing phrase ‘to be undertaken’ superfluous.’’ I
respectfully disagree. In my view, the regulations inform
the meaning of the word action and the activity neces-
sary for the requirement of an environmental impact
evaluation to be instituted. If the state agency is the
entity proposing the plan and exercising judgment over
the plan, the regulations make it clear that an environ-
mental impact evaluation should be completed regard-
less of what entity, public or private, ends up paying
for the project. I further disagree with the majority’s
position that § 22a-1a-1 (2) of the regulations ‘‘applies
only to activities that will be undertaken or funded
by a state actor.’’ The majority further concludes that
‘‘because the activities that the plaintiff alleges will
cause major pollution will be undertaken by private
parties, the defendants’ activities in proposing and
approving those activities do not fall within this defini-
tion regardless of whether they are discretionary or
ministerial.’’ Thus, my disagreement with the majority
is regarding the ‘‘activities proposed to be undertaken
by [the] state’’ language in General Statutes § 22a-1c.
The majority views the activities as the actual project,
whereas, in my view, the activities are the review and
preparation of the plan upon which the ultimate project
may be commenced. Indeed, as I have suggested pre-
viously in this opinion, if a state agency is involved in
the project it obviously is either funded in whole or in
part by the state. The majority’s interpretation renders
the ‘‘activities proposed to be undertaken by [the] state’’
language in § 22a-1c superfluous.
Moreover, I do not believe that the department’s regu-
lations run afoul of our jurisprudence by extending
beyond the bounds of the statute. Rather, in my view,
the regulations promulgated by the department inform
the meanings of the relevant statutory provisions. Oth-
erwise, the phrase ‘‘individual activities or a sequence
of planned activities proposed to be undertaken by state
departments, institutions or agencies’’ in General Stat-
utes § 22a-1c becomes irrelevant, because all actions
of the state are funded in whole or in part by the state.
The language is superfluous unless ‘‘activities’’ and
‘‘sequence of planned activities’’ means the initiation
of a plan that may be carried out by either the state
or private entities. One of our fundamental rules of
statutory construction is that we should construe rele-
vant provisions so as to give meaning and purpose to
every word in the statute. Respectfully, in my view, the
majority’s interpretation of this environmental statute
does not adhere to that tenet.
The defendants are bound by validly enacted regula-
tions in deciding whether to prepare an environmental
impact evaluation. ‘‘Administrative regulations have the
full force and effect of statutory law and are interpreted
using the same process as statutory construction,
namely, under the well established principles of . . .
§ 1-2z.’’ (Internal quotation marks omitted.) Sarrazin
v. Coastal, Inc., 311 Conn. 581, 603, 89 A.3d 841 (2014).
‘‘[R]egulations are presumed valid and, unless they are
shown to be inconsistent with the authorizing statute,
they have the force and effect of a statute.’’ Travelers
Ins. Co. v. Kulla, 216 Conn. 390, 399, 579 A.2d 525 (1990).
Because the term ‘‘initiated’’ is not defined in the
relevant statute or in the department’s regulations, it
is to be given its plain and ordinary meaning under
the rules of statutory construction. ‘‘In interpreting the
language of a statute, the words must be given their
plain and ordinary meaning and their natural and usual
sense unless the context indicates that a different mean-
ing was intended.’’ (Internal quotation marks omitted.)
Blumenthal v. Barnes, 261 Conn. 434, 460 n.37, 804
A.2d 152 (2002).
The plain meaning of the word ‘‘initiate’’ is ‘‘to cause
or facilitate the beginning of’’ or ‘‘set going . . . .’’ Mer-
riam-Webster’s Collegiate Dictionary (11th Ed. 2011).
An entity initiates an activity, therefore, when it takes
action to set a process in motion.
All agency action, of course, is authorized or directed
in one way or another by the legislature. As echoed by
the trial court in the present case, ‘‘an administrative
agency possesses no inherent power. Its authority is
found in a legislative grant, beyond the terms and neces-
sary implications of which it cannot lawfully function.’’
(Internal quotation marks omitted.) Nizzardo v. State
Traffic Commission, 259 Conn. 131, 155, 788 A.2d 1158
(2002). Legislative directives, however, cannot usually
be implemented in the absence of discretionary deter-
minations by the agencies. When an agency acts on its
legislative authority to authorize or implement activities
that may have a significant impact on the environment,
the authorization or implementation of such activities
is an ‘‘action’’ under the policy act and its implement-
ing regulations.
The state agency or department initiates an action
by providing the requisite authorization or approval of
the activity or by engaging in other acts of implementa-
tion necessary for the activity or activities to be under-
taken. If the activity or activities cannot be undertaken
in the absence of such agency approval or implementa-
tion, the acts of approval and implementation are, in
my view, acts of initiation.
Likewise, the word ‘‘proposed’’ is not defined in the
statute or in the department’s regulations. The plain
meaning of the word ‘‘propose,’’ however, is ‘‘to form
or put forward a plan or intention’’ or ‘‘to set forth
for acceptance or rejection . . . .’’ Merriam-Webster’s
Collegiate Dictionary, supra. A proposal, therefore, is
in the nature of a recommendation. Indeed, the depart-
ment’s regulations indicate that the ‘‘agency responsible
for the primary recommendation or initiation of actions
is considered [the] sponsoring agency . . . .’’ Regs.,
Conn. State Agencies § 22a-1a-2. The word ‘‘propose’’
in General Statutes § 22a-1c does not mean to mandate
or require. A ‘‘proposal’’ is the ‘‘act of putting forward or
stating something for consideration . . . .’’ Webster’s
Collegiate Dictionary, supra. As aptly stated in New
Haven v. Pac, Superior Court, judicial district of New
Haven, Docket No. CV-83-0279985-S (December 16,
1991) (5 Conn. L. Rptr. 356, 360), ‘‘[a]n environmental
impact statement is required from the state when it
initiates or recommends the action; the state must be
the proponent.’’ (Emphasis in original.) Moreover, by
its very nature, a proposal is a recommendation made
to another person or entity. In the context of the regula-
tions quoted previously in this opinion, it may be made
by the proponent to another agency or instrumentality
of government, to the public, to the governor, or to the
legislature. There is nothing in the policy act to suggest
that agency proposals or recommendations made to the
legislature are exempt from policy act coverage. As long
as the state agency’s recommendation to the legislature
requests authority to initiate, approve, or implement an
activity or activities that may significantly affect the
environment, it is a recommendation or proposal to
undertake or initiate an ‘‘action’’ within the meaning of
the policy act.
We have construed environmental protection statutes
liberally. See Keeney v. Old Saybrook, 237 Conn. 135,
157, 676 A.2d 795 (1996). Such statutes are ‘‘remedial in
nature and should be liberally construed to accomplish
their purpose.’’ Manchester Environmental Coalition
v. Stockton, supra, 184 Conn. 57. The purpose of the
policy act cannot be fulfilled if activities that will
adversely affect the environment are attributed to the
legislature, and not to the agencies that propose them
for legislative approval. Thus, when an agency proposes
an activity or sequence of planned activities that may
significantly affect the environment, it must perform
an environmental impact evaluation to accompany the
proposal. ‘‘An environmental impact evaluation shall be
prepared as close as possible to the time an agency
proposes an action. The evaluation shall be prepared
early enough so that it can practically serve as an
important contribution to the decision-making process
. . . .’’ Regs., Conn. State Agencies § 22a-1a-7 (b).
The trial court’s memorandum of decision in the pres-
ent case contains no discussion of what constitutes an
action by an administrative agency or executive depart-
ment that may ‘‘significantly affect the environment.’’
Instead, the trial court focused on the act of the legisla-
ture approving the comprehensive energy strategy. It
held that such legislative approval is not an ‘‘action’’
under the policy act. In substance, the trial court con-
cluded that, ‘‘[u]ltimately, the [p]olicy [a]ct only requires
an [environmental impact evaluation] for activities
funded by or proposed to be undertaken by the state.
The [comprehensive energy strategy] was neither.
Because approval of the [comprehensive energy strat-
egy] is not an action which may significantly affect the
environment, as that phrase is defined in §§ 22a-1b (c)
and 22a-1c, the plaintiff has failed to state a claim under
the [p]olicy [a]ct.’’ The discussion of the trial court
preceding this holding suggests that the department,
through the authority, played no role in formulating
and proposing a natural gas conversion energy strategy,
initiating the strategy through a series of discretionary
determinations, approving and modifying the expansion
plan, and issuing orders necessary for its implementa-
tion. According to the trial court, ‘‘the defendants simply
followed the legislative duties imposed upon them.’’
The trial court proceeds as if the department per-
formed a series of ministerial duties directed by the
legislature with no authorization to make discretionary
determinations, especially determinations crucial to
whether a natural gas conversion plan would ever by
implemented. Implicit in the trial court’s holding is that
the broad statement of objectives enunciated by the
legislature could be translated into a concrete natural
gas conversion plan, and be implemented, in the
absence of discretionary determinations by an agency
or agencies. I disagree with this interpretation. The
department conceived of and implemented the natural
gas conversion program in a way that is different only
in form, but not in substance, from the way that adminis-
trative agencies normally formulate and implement pro-
grams authored by the legislature. Typically, the
legislature devises a program by stating broad goals,
objectives, and strategies, and it delegates to one or
more agencies the authority to fashion a program that
is consistent with the legislative objectives. The author-
ity of the agency to implement the program is usually
contained in the same legislation. Here, the legislature
proceeded along the same path, but it did so in two
separate pieces of legislation rather than one. In 2011,
the legislature delegated to the department the author-
ity to: (1) develop a plan setting forth the essential
elements of a program to convert energy users to natu-
ral gas; and (2) recommend legislative and administra-
tive actions to implement the plan. See Public Acts
2011, No. 11-80, § 51; see also General Statutes § 16a-
3d. The department developed a natural gas conversion
plan with specific elements and recommendation for
implementation. In 2013, the legislature approved the
department’s plan and the administrative steps pro-
posed to implement it, and it delegated to the depart-
ment the authority to implement the plan as proposed.
See Public Acts 2013, No. 13-298, § 51 (c); see also
General Statutes § 16-19ww (d). Although the legisla-
ture proceeded in two steps rather than one, it neverthe-
less delegated to the department the authority to make
discretionary determinations. Without these determina-
tions, the program would neither have been developed
nor would it have been implemented. I disagree with
the trial court’s analysis because, in my view, the trial
court focused on the acts of the legislature and not on
the discretionary determinations and other implemen-
tation activities of the department. The conversions to
natural gas that are at the heart of this case could
not have been implemented without the department’s
actions. Therefore, I would conclude, unlike the trial
court, that the department initiated the proposed plan
and had wide discretion in both the acceptance and
administration of the plan. Consequently, the actions
of the department were far from ministerial and should
have required the court to evaluate any potential impact
on the environment.
The trial court classified the department’s actions as
ministerial acts of adherence to strict and narrowly
tailored legislative commands. In my view, the record
shows otherwise. The legislature had neither the techni-
cal expertise nor the inclination to make the types of
determinations it delegated to the department. As is
customary, it relied on the expertise of the administra-
tive agencies to make the determinations necessary to
implement a natural gas conversion program. The deter-
minations of the department, acting through the author-
ity, were essential prerequisites to implementation of
the plan and, as such, they were acts of ‘‘initiation’’
within the meaning of § 22a-1b (c).
The majority concludes that ‘‘[i]n the present case,
the defendants have not proposed to undertake or to
fund the activities that the plaintiff alleges will have a
major impact on the state’s environmental resources,
namely, the construction of new gas pipelines in the
state resulting in the increased discharge of methane
gas into the atmosphere. Rather, these activities will
be undertaken and funded by the local distribution com-
panies, which are private entities. Accordingly, we con-
clude that the trial court properly granted the
defendants’ motions to dismiss on the ground that the
requirement of an environmental impact evaluation in
§ 22a-1b (c) does not apply to their activities in the
present case.’’ I respectfully disagree. The difference in
opinion is that the majority reads the statute to require
that the state either undertake or fund the activities. I
am not sure how the word undertake is different from
the word funding because, in either event, the state is
going to pay for the project. In my view, the statute
requires an environmental impact evaluation where, as
here, the state has made a proposal to a private entity
or group of entities, and has used its discretion to deter-
mine how the ultimate project is to be constructed. Any
other construction would render the term ‘‘initiated’’ in
§ 22a-1b (c) superfluous.
In 2011, the legislature mandated that the department
propose a comprehensive energy strategy for the state.
See Public Acts 2011, No. 11-80, § 51 (a); see also Gen-
eral Statutes § 16a-3d. As part of that comprehensive
energy strategy, the department proposed the elements
and contours of a natural gas conversion plan, and it
proposed a series of administrative actions that placed
the department at the center of the implementation
process.
The department’s proposal requested authority to
review the plan from private gas companies, to deter-
mine its consistency with the comprehensive energy
strategy, to modify the plan it had received, and, through
the authority, to make the changes to the regulatory
structure necessary to ensure the plan’s feasibility and,
ultimately, to approve it. In short, the department pro-
posed a sequence of activities leading to performance
of the conversions by private gas companies. This
sequence of activities was first proposed by the depart-
ment. None of the activities were mandated, or even
mentioned, by the legislature in 2011. See Public Acts
2011, No. 11-80, § 51. Had the department not fashioned
a natural gas conversion plan, and had the department
not proposed the administrative steps to implement it,
there would have been no plan for the legislature to
approve or endorse. In 2013, the legislature gave the
department discretion to review the plan it received
from the gas companies in order to determine whether it
was consistent with the comprehensive energy strategy.
The department approved the plan only after the gas
companies made numerous revisions that were directed
by the department. Much of the gas companies’ plan is
the work of the department. If the department had not
made the consistency determination, the plan would not
have moved forward to final approval by the authority.
Number 13-298, § 51 (c), of the 2013 Public Acts pro-
vides in relevant part that ‘‘[i]n the event that the com-
missioner determines that the [gas companies’] plan is
consistent with the [c]omprehensive [e]nergy [s]trategy
. . . the [authority] shall . . . approve or modify the
plan . . . .’’ There would have been no plan to ‘‘approve
or modify’’ had the department not made the threshold
determination of consistency. Moreover, the legislative
delegation to the authority to ‘‘approve or modify’’ the
plan was extremely broad. The authority had almost
unfettered discretion to condition its approval on modi-
fications by the gas companies to their natural gas con-
version plan. An agency’s power to approve
conditionally is inherent in the power to approve or
disapprove. See Connecticut Fund for the Environ-
ment, Inc. v. Environmental Protection Agency, 672
F.2d 998, 1006 (2d Cir.), cert. denied sub nom. Manches-
ter Environmental Coalition v. Environmental Protec-
tion Agency, 459 U.S. 1035, 103 S. Ct. 445, 74 L. Ed. 2d
601 (1982). This broad discretion provided the authority
with the power to influence and shape the gas compa-
nies’ plan and the activities necessary to implement it.
Thereafter, the authority approved and modified the gas
companies’ plan. It also made a series of discretionary
determinations to change the rate structure in ways
that were necessary to the plan’s feasibility, including
determinations to lower the hurdle rate for recoupment
of costs by the gas companies. Had the authority not
approved the gas companies’ plan as modified, and had
the authority not made these other determinations, the
gas companies’ conversion plan could never have been
implemented. The authority’s actions, as effectuated in
twenty-two separate orders, were a major part of the
implementation plan. Thus, the department proposed
the primary recommendation for activities that may
significantly affect the environment, making it the
‘‘sponsoring agency’’ for purposes of § 22a-1a-2 of the
Regulations of Connecticut State Agencies. It also initi-
ated the activities, after legislative approval, by making
discretionary determinations that were essential to per-
mitting the gas companies to carry out their plan. The
department’s actions, through the authority, were
‘‘actions’’ within the meaning of the policy act and its
implementing regulations. In my view, the department’s
consistency determination is much the same as the
determination made by the Department of Planning and
Energy Policy in Manchester Environmental Coalition
v. Stockton, supra, 184 Conn. 54–55. In that case, the
Department of Planning and Energy Policy was required
to determine that the project at issue ‘‘is not inimical
to any statewide program objectives.’’ Id., 55. That
determination was a prerequisite to the approval of the
project by the Commissioner of Commerce. Here, the
department’s consistency determination was a prereq-
uisite for approval of the gas companies’ plan by the
authority. Therefore, I would conclude that the defen-
dants’ involvement in the gas project constituted
‘‘action’’ within the meaning of the policy act.
III
The complaint alleges that if the defendants had per-
formed an environmental assessment, they would have
determined that the natural gas expansion plan will
have a significant effect on the environment. The com-
plaint also alleges that the plan, which proposes to
convert 300,000 additional homes to natural gas and
to build 900 miles of new gas lines, will significantly
increase the amount of methane, a greenhouse gas, that
is emitted each year by Connecticut’s gas companies.
Currently, it is alleged, the natural gas distribution sys-
tem in Connecticut is leaking more than 200,000 metric
tons of methane per year while serving 415,000 custom-
ers. Since the department’s plan would almost double
the number of gas customers, increased methane emis-
sions, it is alleged, would result and their extent should
have been assessed and, if necessary, moderated.
As alleged in the complaint, the impact of methane
is considerably more serious than that of carbon diox-
ide. The United States Environmental Protection
Agency has concluded that methane is more than
twenty times as effective as carbon dioxide in trapping
heat in the atmosphere. For this reason, Connecticut
has established targets for decreased greenhouse gas
emissions in the state’s Global Warming Solutions Act.
See Public Acts 2008, No. 08-98, § 2.
The complaint also alleges that the department’s plan
to build 900 miles of new gas lines requires construction
activities that will adversely impact the state’s freshwa-
ter wetlands, soils, water, groundwater aquifers, trees
and wildlife habitat. The complaint states that these
consequences, like the increased methane emissions,
should also have been assessed and, if necessary, mod-
erated.
All of these activities were undertaken with no envi-
ronmental impact evaluation. As a result of the majority
decision today, the state will be able to avoid an environ-
mental review of future projects by following the same
process it followed in the present case. Such a result
is not contemplated by the policy act. The policy act
was designed to ensure a thoughtful and meaningful
consideration of environmental issues. The procedures
mandated by the policy act should have been invoked
in this case.
In my view, therefore, the decision of the trial court
dismissing the complaint for lack of subject matter juris-
diction should be reversed. The matter should be
remanded to the trial court with instructions consistent
with a determination that the defendants proposed and
initiated an ‘‘action’’ within the meaning of the policy
act and for further proceedings to determine whether
this ‘‘action’’ will arguably have a significant effect on
the environment.
Accordingly, I respectfully dissent.
1
The majority maintains in footnote 13 of its opinion that ‘‘[w]e do not
believe that it was simply redundant for the legislature to make it clear that
an environmental impact assessment is required either when a state actor
undertakes the activity or when a private actor undertakes the activity, but
the activity is funded by the state. In any event, it is far from clear that the
state funds all activities by state actors, in whole or in part. We note, for
example, that the federal government frequently funds state programs and
projects, and, without having performed a comprehensive review of those
activities, we are not prepared to say that the state contributes funding to
all of them.’’ (Emphasis in original.)
I continue to maintain, respectfully, that pursuant to § 22a-1a-1 (2) of the
regulations, the word ‘‘action’’ includes ‘‘other proposed activity for which
an agency exercises judgment or discretion as to the propriety of that action.’’
The definition does not state that ultimate action must be undertaken by
an agency or agencies.
The majority accurately highlights one of the problems in this case. The
record is inadequate to determine the nature of the funding in this case.
See footnote 13 of the majority opinion. Certainly, in the sense that the
state is involved, the state funds payment for its employees reviewing the
projects and any experts whom the state may consult. Although the record
reflects the private funding of the project, we do not know if the state was
being reimbursed for the costs in reviewing the project. This issue relates
to the issues discussed in part I of this dissenting opinion. In my view, the
matter should be returned for a factual hearing regarding the full nature of
the funding in this matter. Otherwise, we are resorting to speculation regard-
ing the true nature of this project and how facts that are developed at a
hearing may relate to the appropriate interpretation of the statute.